Shashi Chaudhary vs Ram Kumar & Anr.
2011 Latest Caselaw 800 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CRL.REV.P. 537/2009

                                                       Decided on 10.02.2011
IN THE MATTER OF :

SHASHI CHAUDHARY                                           ..... Petitioner
                           Through: Mr. Ravi Kumar Tomar, Advocate

                      versus

RAM KUMAR & ANR.                                             ..... Respondents
                           Through: Mr. Sumeet Verma, Advocate for R-1.
                           Mr. Navin Sharma, APP for the State/R-2.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may          Yes
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?         Yes

     3. Whether the judgment should be                 Yes
        reported in the Digest?


HIMA KOHLI, J. (Oral)

1. The present petition is filed by the petitioner under Sections

397/401 of the Cr.PC against the judgment and order dated 23.05.2009

passed by the Additional Sessions Judge, Karkardooma Courts, Delhi, in a

case arising out of FIR No.129/2008 lodged by the petitioner/prosecutrix

against respondent No.1/accused under Sections 376/506 IPC, registered

with Police Station: Mandawali, Delhi.

2. The conspectus of the case, as per the prosecution, is that on

03.04.2008 at 10:30 PM, respondent No.1/landlord of the

petitioner/complainant/prosecutrix had entered her house, threatened her

and sexually assaulted her. The statement of the petitioner was recorded on

05.04.2008, wherein she had stated that on the very next day of the

incident, i.e., on 04.04.2008 at about 8:00 PM, respondent No.1/landlord

had quarrelled with her and beaten her up. After the investigation was

completed, charge-sheet was filed and respondent No.1/accused was

charged vide order dated 09.07.2008 for the offences punishable under

Sections 376/506 IPC, to which he pleaded not guilty and claimed trial.

3. To support its case, the prosecution examined 10 witnesses.

The important witnesses were PW-1, the prosecutrix, PW-4, Dr. Sunita

Yadav and PW-5, HC Amarjit Singh. Respondent No.1/accused was

examined under Section 313 Cr.PC. He claimed to be innocent and

submitted that he had been falsely implicated in the case by the complainant

because of a dispute with her regarding the non-payment of rent of the

tenanted premises payable @ `3,500/- per month, for a period of three

months apart from outstanding electricity charges. No other witness was

examined by respondent No.1/accused.

4. In the impugned judgment, the learned ASJ took notice of the

testimony of PW-1, the petitioner/complainant; PW-3, Dr. Rajni Lohia, who

had medically examined the accused; PW-4, Dr. Sunita Yadav, who had

proved the MLC of the petitioner/complainant; PW-2, Ct. Surekha, who had

taken the petitioner/complainant for her medical examination; PW-5, HC

Amarjit Singh, who had reached the spot where he had found the petitioner

in an intoxicated condition; PW-7, HC Ramesh, who proved the FSL report

and PW-8, PW-9 and PW-10, the police officers in whose presence

respondent No.1/accused was arrested. After carefully examining the oral

as well as documentary evidence, the learned ASJ arrived at a conclusion

that the evidence did not lend credence to the allegations of the petitioner

that she was raped by respondent No.1/accused on 03.04.2008. As a result,

it was held that the prosecution had failed to prove its case under Sections

376/506 IPC and respondent No.1/accused was, therefore, acquitted.

5. Aggrieved by the aforesaid judgment, the present revision

petition is filed by the petitioner/prosecutrix. Learned counsel for the

petitioner states that the assumption drawn by the learned ASJ, to the effect

that the testimony of the prosecutrix was not reliable, is erroneous. He

states that no such suggestion was made by the defence or given to the

prosecutrix that the accused had been falsely implicated in this case or that

there was any dispute between them with regard to the tenanted premises

and hence, any deduction drawn in this regard was inappropriate. He seeks

to explain the delay in lodging of the complaint by the petitioner with the

police by stating that she was in utter shock and being a respectable lady,

did not want to reveal the crime committed by respondent No.1/accused on

account of the social stigma attached to the same. It is his argument that

the petitioner/prosecutrix had proved her case beyond doubt and that there

is sufficient material on record to hold respondent No.1/accused guilty of the

offence under Sections 376/506 IPC.

6. Per contra, counsel for respondent No.1/accused submits that a

perusal of the testimony of the petitioner/complainant, PW-1 establishes the

fact that the same was not reliable as she contradicted herself in her

deposition. He further states that the petitioner improved, to a large extent,

the statement as made by her at the time of filing of the FIR, by adding to

her testimony certain facts, which were never there in the FIR. He also

draws the attention of this Court to the deposition of PW-4, Dr. Suman

Yadav to state that there were material differences in the statement made

by PW-1 to her, insofar as the status of her husband was concerned and

particularly, with regard to the date of the incident.

7. This Court has heard the counsels for the parties and carefully

perused the record. At the outset, it must be noticed that the scope of

interference in a criminal revision petition filed against an acquittal order

passed by the court below is rather limited. Reliance can be placed

Chandrappa v. State of Karnataka reported as (2007) 4 SCC 415, wherein

the Supreme Court laid down the general principles for an appellate court to

follow in case, where the accused has been acquitted by the trial court. The

principles were:

"(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." (para 42)

8. In the present case, on an analysis of the evidence of the trial

court, it has to be noticed that the behaviour of the petitioner/prosecutrix,

as reflected from her testimony, appears to be quite strange. There was no

explanation given by her for not making a hue and cry on 03.04.2008, when

the alleged offence took place, nor is there any explanation for failure on her

part to lodge the complaint with the police immediately or for that matter

within a reasonable time of the incident. After considering the explanation

offered on behalf of the petitioner that she could not file the complaint on

account of her fear of facing the society, particularly, since she was a mother

of two young sons, the trial court was of the opinion that no plausible

explanation was offered by the petitioner to show how the said fear

vanished within 24 hours, for her to have lodged the FIR on the very next

day.

9. The second aspect which the Court noticed was that while the

petitioner alleged that on the night of 03.04.2008 she was sexually

assaulted by respondent no. 1/accused, yet on 04.04.2008, she made no

such allegation against respondent No.1/accused. Instead, the petitioner

claimed that on 04.04.2008, respondent No.1/accused had offered a cold

drink to her, which contained some intoxicating substance and he forced her

to drink it by threatening her. The said behaviour of the petitioner has been

noticed and commented upon in the impugned judgment. The Court found it

inexplicable that when the prosecutrix claimed that she had been sexually

assaulted by respondent No.1/accused only a night before, why would she

accept a beverage from the accused at all. Further, the testimony of the

prosecutrix was found to be doubtful on account of the fact that she gave a

different version to the doctor as compared to her deposition in Court. In

this regard, a perusal of the MLC, Ex.PW4/A, shows that the petitioner

stated to the doctor that her husband had expired, but in the testimony

presented in Court, she did not state so. Rather, in her cross-examination,

she admitted that her husband had been living separately from her for the

past 15 years. It was also admitted by her that her younger son had not

been living with her since July 2008. Furthermore, as per the statement of

the petitioner (Ex.PW1/A), it is evident that she had never disclosed earlier

the fact that on the date of the incident, respondent No.1/accused had

knocked on her door, pressed her mouth by putting his hand and thrown her

on the bed, but in the examination-in-chief, she has made the aforesaid

assertions.

10. The Court also noticed that the petitioner is a mature woman of

40 years having two young children and cannot be equated with a shy and

resistant young lady, who would have a societal inhibition preventing her

from informing the police about the crime at the earliest. Pertinently, DD

No.26-A recorded on 04.04.2008 at 10:35 AM only mentions the fact that in

the house in question one woman was quarrelling. The said DD entry was

not denied by the petitioner. In the said DD, there is no whisper of any

commission of offence of rape. Even the second telephonic call made by the

petitioner from her mobile phone after 15/20 minutes, as recorded by the

police, did not reveal the fact that she had been raped. It was on the third

occasion, in the midnight of 04.04.2008, when for the first time was a

complaint of sexual assault made by the petitioner. Furthermore,

surprisingly, while the petitioner claimed in her examination-in-chief that she

was wearing a pajama and nighty on the alleged date of the incident, the

said clothes were not handed over for medical examination. Instead, the

petitioner gave a black pant to the doctor during the MLC, which was

conducted on her at 8:00 AM on 05.04.2008. The doctor, who conducted the

MLC, noticed the fact that the petitioner was smelling of alcohol, that her

hymen was not intact, that no fresh mark of injury was present there and

two fingers could be inserted easily in the vagina.

11. Having regard to the entire evidence placed on record and taking

into consideration the conduct of the petitioner/prosecutrix as noted above,

this Court is of the opinion that the conclusion arrived at by the trial court to

the effect that the testimony of the petitioner/prosecutrix was not reliable is

neither arbitrary, illegal or contrary to the record. There are a number of

loopholes in the story set up by the petitioner, so as to shake the foundation

of the case laid by the prosecution. The trial court rightly held that the

prosecution failed to prove its case against respondent No.1/accused under

Sections 376/506 IPC. The conduct of the petitioner in the given facts and

circumstance when tested on the anvil of ordinary reaction of a normal

person, cannot withstand scrutiny. It appears to be more a case of the

petitioner seeking to involve the respondent No.1/accused in the offence

under Sections 376/506 IPC only to pressurize him in the civil litigation

initiated by her, in respect of the tenanted premises, of which respondent

No.1/accused is the landlord.

12. In view of the aforesaid facts and circumstances, the impugned

judgment and order dated 23.05.2009 are upheld and the present petition is

dismissed.

                                                        (HIMA KOHLI)
FEBRUARY 10, 2011                                          JUDGE
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